A conflict may well arise between a State’s human rights obligations and the rules of international law on immunities. The jurisdictional immunity of States is a principle of international law that is upheld by the European courts, for one State cannot be subject to the jurisdiction of another. However, such restrictions appear somewhat incompatible with the requirements of the rule of law. Whilst State immunity prevails over the right of access to a court, this can be justified only if the complaints have other remedies by which to seek protection of their rights under the European Convention on Human Rights. The opposition between the rules of customary international law on immunities and the growing idea that there can be no impunity for violations of human rights is a matter that is increasingly being raised in both Strasbourg and The Hague. In three Grand Chamber judgments delivered at the end of 2001, the European Court of Human Rights found that the application of the principle of sovereign immunity, whereby proceedings could not be brought in domestic courts against foreign States, did not breach the right to a fair hearing under Article 6 of the European Convention.
In the 2002 case concerning the Arrest Warrant, the ICJ was called upon to examine the question whether, in customary international law, there could be an exception to immunity based on human rights. It concluded from its examination of the practice of regional and national courts that, in the current state of general international law, there where not yet any exceptions, in any form whatsoever, to the rule granting immunity in criminal matters to a serving Minister for Foreign Affairs, even one suspected of committing war crimes or crimes against humanity.
This is however, an area of law which is developing rapidly and which the two court will certainly be keeping under review.
(Fragmentation orpartnership? The reception of ICJ case-law by the European Court of Human Rights, în M. Andenas & E. Bjorge (coord.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Studies on International Courts and Tribunals,Cambridge: Cambridge University Press, 2015,la p. 183)